The judicial confirmation process has become a spectacle almost as comical as one of Al Franken’s (D-MN) jokes. Supreme Court nominee Elena Kagan was not grilled on whether she believes Americans have a First Amendment right to oppose homosexuality — i.e., whether their religious and moral liberties are overridden by “sexual orientation” laws.

“Kagan did not deny that her application of Harvard’s [‘sexual orientation’ nondiscrimination] policy would have excluded the Catholic Church.” —CNSNews.com, reporting on Kagan’s confirmation hearing

By Peter LaBarbera

Solicitor General Elena Kagan has been confirmed by the Senate Judiciary Committee by a 13-6 vote — after hypocritically dodging and weaving her way through the farce that now masquerades as the judicial confirmation process. Sen. Lindsey Graham (SC) was the lone Republican to vote for her — despite the fact that South Carolina is conservative while Kagan is the ideological cousin of our elitist, far-left president. (Click HERE for the MassResistance report on Kagan’s pro-homosexual record at Harvard.)

Kagan’s future now rests with the Democrat-dominated Senate — where most pundits (betting on listless GOP opposition) expect her to win confirmation; the vote is expected to come in early August.

Americans now face the prospect of a radically pro-abortion and pro-homosexuality social Leftist-for-Life sitting on the U.S. Supreme Court, potentially for 30 or more years. In just 105 days, on Election Day (Nov. 2), U.S. citizens will be able to cripple Barack Obama’s power — a day anticipated by millions of citizens outraged over his arrogant and reckless presidency. In two more years, Obama could be voted out of office a la Jimmy Carter.

Not so with Kagan. Unless Republicans summon up the guts to actually block her via filibuster (don’t bet on it), she likely will soon become Justice Kagan until she retires at an old age. There, if her past is any indication, one day she will vote to create a new “fundamental right” of “same-sex marriage” out of an “evolving” Constitution — all the while protecting that old make-believe “constitutional right,” sacrosanct to liberals, of abortion-on-demand. (See this Omaha World-Herald story on Kagan’s manipulation of expert testimony in the Clinton administration to fight legislative attempts to ban the gruesome practice of partial-birth abortion.)

And why not? The same Supreme Court that upheld anti-sodomy laws as constitutional in Bowers v. Hardwick in 1986 struck them down as unconstitutional just 17 years later in Lawrence v. Texas. Will the same fate befall laws and state amendments banning “same-sex marriage”? Could a Justice Kagan be in the minority in a Court decision that rejects homosexual “marriage” (in its current conservative-vs.-liberal composition) — and then be in a majority that later overturns that decision, as happened with homosexual sodomy laws?

There hasn’t been “rule of law” in America for decades, at least as it was understood by our Founding Fathers, and they knew a thing or two. The best evidence of that — and, indeed, of the folly of the U.S. legal system — is our national difficulty in banning what is essentially legalized infanticide (partial-birth abortion; see description of this killing procedure HERE). How appropriate that Kagan herself played a central role in that — essentially the legal preservation of infant murder. (Perhaps she will find her ideological soulmate in current Justice Ruth Bader Ginsburg, who strayed off the “pro-choice” talking points in a racist interview comment about Roe v. Wade: “I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”)

Rule of Law?

Without a foundation in transcendent moral truth and biblically-based (Judeo-Christian) justice, “constitutional law” becomes whatever liberals (or libertarians) interpret it to be, according to the whims of the age and as long as they can muster a one-vote majority. Remember the Boy Scouts of America — who came within a single vote of being forced to allow homosexuals as Scoutmasters despite the Scouts’ “morally straight” oath? These are the sorts of cases Kagan could be deciding for decades — subjectively applying her liberal “empathy” standard per Obama’s mandate.

(Whenever I hear a liberal like Obama talk about “empathy,” I wonder where it disappeared to regarding the protection of the unborn — who are slaughtered in the womb in the name of adult “choice” because it would be inconvenient for them to be born. Never allow yourself to be intimidated by liberals pontificating on “compassion” — they generally show greater “empathy” for the lives of death-row inmates guilty of committing heinous crimes than unwanted innocent babies in the womb. On the homosexuality issue, liberals are quite willing to encourage homosexual sex, which leads to “gay” men dying young, so great is their compassion.)

Solicitor General Elena Kagan

Given her long record of social radicalism — including harassing the U.S. military as Harvard dean because the latter would not allow homosexuals to serve — it’s not too difficult to predict how a Justice Kagan would behave on the Court. As Sen. Grassley states below, Kagan even wants to incorporate “international law” into America’s jurisprudence — and we know the result of “sexual orientation” laws in countries like Britain and Canada. Both nations are becoming pro-homosexuality police states — arresting Christians for preaching publicly against sexual sin — even merely for expressing “anti-gay” ideas. Will America follow those laws? Will we honor and respect the European Union’s legal precedents? (See this European Parliament press release on “transgender” rights.)

The following is Sen. Charles Grassley’s (R-IA) statement of opposition to Kagan, followed by an article reprinted from CNSNews.com. The latter item illustrates the perils of pro-homosexuality “nondiscrimination” law. We wish Senators had demanded more answers from Elena Kagan on the “zero-sum” game between religious and First Amendment liberties and “gay rights” — because if she is confirmed she could become a leader on the court of Justices willing to impose their version of morality on Christians and others who refuse to lend legitimacy to homosexual practice.

Lastly, why is that Republicans so often fail to pull out all the stops in opposing a dangerous left-wing ideologue like Kagan. As Randy Thomasson writes HERE, the GOP could have upped the ante and refused to vote out Kagan — using a little-known provision that requires at least one minority member vote to approve a nominee out of committee after a member moves to block the vote. Maybe it would have only stalled the nomination further — but that’s what the Left would try to do were this a Republican-appointed nominee with a history of right-wing activism at a major university!

The Republican Party could do the nation a big favor by using the Kagan nomination to educate the nation on Obama’s extremist policies and goals. That way, even if she wins confirmation, they would undermine Obama’s potential to do further damage. But as is typical in these situations, the Democrats play hardball while the Republicans play wiffle ball. And unless they grow a backbone and quick, they’re about to strike out again by not doing everything possible to stop Kagan’s undeserved assent to the highest court in the land. — Peter LaBarbera, www.aftah.org

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Sen. Grassley’s Opposition Statement on Kagan:

Senator Chuck Grassley released the following statement regarding his vote on Elena Kagan to be an Associate Justice on the United States Supreme Court:

“Since the nomination hearing for Solicitor General Kagan ended, I have spent time reviewing the hearing record. Thorough consideration has led me to conclude that I cannot vote for Solicitor General Kagan to be the next Associate Justice on the United States Supreme Court.

“In her hearing testimony, Solicitor General Kagan failed to answer directly many of the questions posed to her. This was extremely disappointing, especially since she previously took the position that Supreme Court nominees should be forthcoming in their answers on substantive issues. Because she has no previous judicial experience, candid answers were essential for us to ascertain whether she has the appropriate judicial philosophy.

“Solicitor General Kagan’s record shows that she allows her politics and personal views to steer her legal thinking and takes an outcome-based approach when analyzing cases. She also has praised jurists who endorse an activist judicial philosophy. At the hearing, she declined to fully commit to upholding the constitution when it came to the Second Amendment. She appeared reluctant to recognize any constitutional limits on federal power, and also indicated that she would use international law for ‘good ideas’ when making decisions on the bench.

“Solicitor General Kagan is an accomplished political lawyer, but my vote must be based on the nominee’s ability to be an impartial jurist who would exercise judicial restraint and strictly adhere to the Constitution. Based on the record and the nomination hearing, I am not convinced that Solicitor General Kagan will be able to shed her deeply held personal ideological beliefs, political views and experiences, and check those biases at the door of the Supreme Court. Therefore, I must vote against her nomination.”

(CNSNews.com) – Supreme Court nominee Elena Kagan, who banned military recruiters from Harvard Law School’s career services office when she was dean of the school, declined to say whether she would have also banned the Catholic Church from recruiting on campus….
While testifying before the Senate Judiciary Committee this week, Kagan was questioned several times about her decision to ban the U.S. military from Harvard Law School’s Office of Career Services. Kagan maintained that she was merely applying the school’s non-discrimination policy and was not targeting the U.S. military recruiters.

While at Harvard, Kagan prohibited the U.S. military from using school resources because she claimed the military’s ban against open homosexuals – the “don’t ask, don’t tell policy” — violated the school’s policy. The policy says that prospective employers who would recruit on campus cannot discriminate based upon sexual orientation, among other criteria.

On Wednesday, Sen. Lindsey Graham (R-S.C.) asked Kagan whether she would have applied the same policy to the Catholic Church, if it were looking to recruit and hire lawyers on Harvard’s campus.

The Catholic Church does not allow women to become priests, Graham noted. Catholic teaching, incidentally, also says that homosexuality is a moral disorder and the practice thereof cannot be condoned.

Kagan did not deny that her application of Harvard’s policy would have excluded the Catholic Church. The exchange between Sen. Graham and Kagan occurred as follows:

Sen. Graham: “Would it [the Harvard policy] apply to the Catholic Church, if they wanted to come and recruit lawyers from the law school because they don’t have women priests?”

Kagan: “Well, the way we enforced this policy is if an employer comes, we give the employer a form, and the form basically says, ‘I comply with the following policy’ that says, ‘I will not discriminate on the basis of.’ And then it says something like race and creed and gender and sexual orientation and actually veterans’ status as well. And if the employer signs the form, the employer can get the services of the Office of Career Services. And if not, not [get them].”

The Office of Career Services is the office that coordinates between students and prospective employers, and was the office from which Kagan banned the U.S. military and its recruiters.